BRITISH SETTLEMENTS BILL (Hansard, 12 October 1945)

§ The Secretary of State for the Colonies (Mr. George Hall)
I beg to move, "That the Bill be now read a Second time."
This Bill, like the last one, is very short and also, I trust, noncontroversial. Its object is to remove difficulties sometimes encountered in framing Constitutions for the Colonial Empire. These difficulties are purely legal and affect only those territories in the Empire which are British Settlements; that is to say, from the legal point of view they are dependent upon the British Settlements Act, 1887, which this Bill is designed to amend. The Act of 1887 was passed to provide for the government of British possessions acquired by colonisation, such as those which British subjects resorted to and settled in in different places abroad, where there was no suitable Government and such settlements afterwards became possessions of His Majesty. British settlements are a comparatively small part of the Colonial Empire. Excluding Protected States, where His Majesty has in general no jurisdiction, the Colonial Empire consists of the following types of territory settled territory—with which this Bill is concerned; conquered territory; a ceded territory; protectorate; and mandated territory. In many cases a Dependency which is regarded generally as one administrative unit consists of a combination of two or more of the types of territory to which I have referred, and it would be highly inconvenient and undesirable for each constituent part of such a Dependency to be given a separate Constitution, and, indeed, the present tendency is to reduce the number of legislatures and increase the area of their jurisdiction. For example, the Gold Coast, to which I shall refer later, consists of the Gold Coast Colony, which is a British Settlement, Ashanti, which is a Colony but not settled, and a Protectorate called the Northern Territories.
595 An instrument setting up a legislature for a territory comprising areas of different kinds must be made in exercise of the powers appropriate to each area, regard being had to the method of their acquisition. This gives rise to no great difficulty except where part of the territory is a British Settlement. The authority to set up a legislative body for a British Settlement is derived from the British Settlements Act, 1887. This Act enables His Majesty to make laws for a settlement by Order in Council. By Section 3 the King is empowered to delegate that power by Letters Patent under the Great Seal to "three or more persons within the Settlement. "It is immediately apparent, therefore, that there is objection to establishing one legislature for two or more areas any one of these areas being a British Settlement, because some of the members must of necessity be persons within the other areas and they would not be persons "within the Settlement." This difficulty has been recognised for some years, and though certain methods of overcoming it have been suggested from time to time, conflicting opinions have been expressed as to their efficacy, and the legal position is highly unsatisfactory.
Recently the problem has become acute in connection with projects for important constitutional reforms in Africa. In the Gold Coast, to which I have referred, it is proposed to set up a legislative body to make laws for the Gold Coast Colony, the whole or part of which is a British Settlement, and Ashanti, which is not a British Settlement. There must, of course, be members to represent both territories and not only persons within the Gold Coast Colony. Similarly, the Gambia consists partly of British Settlement and partly of a protectorate, and a proposed legislature for the whole territory must include representatives of both parts. This restraint under the Act upon the creation of proper legislatures serves no useful purpose, and it is therefore proposed in this Bill to remove them by providing, in effect, that for the words "any three or more persons within the Settlement" there shall be substituted a reference to any specified person or persons or authority.
That is the most important effect of the Bill, but this amendment will serve a further purpose. When a Colonial Territory is first given a legislature with an 596 unofficial majority it is necessary to vest reserved powers of legislation in the Governor. The Governor may be "within the Settlement" but the vesting of reserved powers in the hands of one person would obviously be inconsistent with the words "three or more persons". The Amendment will permit the necessary powers to be given to the Governor.
Section 3 of the Act at present requires the power to make laws to be delegated by Letters Patent under the Great Seal. In the case of a Protectorate the same sort of delegation must be effected by means of an Order in Council under the Foreign Jurisdiction Act, 1890. Hence, when a legislature has to be set up for a territory which is in part a British Settlement and in part a protectorate, two different kinds of instruments are required. This difficulty it is proposed in this Bill to overcome by providing that the power to make laws may be delegated under the British Settlements Act by means of an Order in Council. It will then be possible to issue one Order in Council which will be under the British Settlements Act as respects the Colony and under the Foreign Jurisdiction Act as respects the protectorate. I am afraid that the issue is, as my hon. Friends will see, a very legal matter, but one which I trust that I have made reasonably clear to them, and I would therefore ask them to give me the Second Reading of this Bill.

§ Mr. Quintin Hogg (Oxford)
This is a Bill which raises a point of interest to the legal historian rather than, I think, to a practical House of Commons. My right hon. and gallant Friend the Member for Bristol West (Colonel Stanley) asked me to apologise to the House for his absence and to explain that it was unavoidable and did not arise out of any discourtesy on his part. The Bill, as I understand it, makes a formal improvement in the law rendered necessary for administrative reasons by the curious fact that a single British Colony may have within it territories of at least three different legal types: A British Settlement originally formed out of British subjects who had gone to reside there; a Colony properly so called acquired by conquest; and a Protectorate which may have been acquired by cession or treaty. In those circumstances enactments which are applicable only to a Settlement may cause embarrass- 597 meat in Colonies where the territories are of more kinds that one. So far as we are concerned we consider that this Bill can be given a Second Reading without further discussion, and if I may be permitted a remark as to the moral to be drawn from this and other Bills this morning, it would be that a great deal of Parliamentary time might be saved if His Majesty's Government would consider the codification and consolidation of our laws, thereby reducing the jungle which at present is flourishing, growing and increasing every day.

§ Mr. Godfrey Nicholson (Farnham)
I am rather surprised to hear my hon. Friend speak about the legal jungle because he himself belongs to the profession whose members might be called its wild denizens, and gets his living out of it.

§ Mr. Hogg
We guide people out of the jungle.

§ Mr. Nicholson
Is the implication behind this Bill that the policy of His Majesty's Government, when granting constitutions to Colonies, will be to do it by Order in Council? I have been hoping that this House would have more time than in the past, and more powers, to consider the provisions of such constitutions. I take it that the right hon. Gentleman implies by his remarks that in future the procedure will be as in the past, namely that Colonial constitutions will be promulgated only by Orders in Council.

§ Mr. George Hall
The point which my hon. Friend has put is one which I can answer in a sentence. There is no change in the law as it exists. The intention is, as far as possible and when the House desires it, that when any change is made in a constitution or any new constitution is granted, opportunity will be given to the House to debate it.